Canadian Pacific Ry. Co. v. Hansen, (1908) 40 SCR 194

Supreme Court of Canada

Canadian Pacific Ry. Co. v. Hansen, (1908) 40 S.C.R. 194

Date: 1908-05-05

The Canadian Pacific Railway Company (Defendants) Appellants;

and

Charles Hansen (Plaintiff) Respondent.

1908: March 5, 6; 1908: May 5.

Present: —Sir Charles Fitzpatrick C.J. and Davis, Idington and Duff JJ.,

ON APPEAL FROM THE SUPREME COURT OF THE NORTH WEST TERRITORIES.

Operation of railway—Yard siding—Sloping station platform— Private passage—Dangerous way—Negligence—Procedure at trial—Misdirection—Objections to charge to jury—-Practice.

Where, on a specific objection to his charge, the trial judge recalled the jury and directed them as requested, the contention that the directions thus given were erroneous should not be entertained on appeal.

APPEAL from the judgment of the Supreme Court of the North West Territories affirming the judgment entered by Stuart J. on the verdict of the jury awarding the plaintiff $6,500 damages, with costs.

The action was to recover damages for injuries sustained by the plaintiff at Red Deer Station, on the Calgary and Edmonton Branch of the railway of the defendants, caused, as alleged, by the dangerous manner in which the approaches to the station and station platform were constructed and the imprudence of the company in shunting a train on a yard-siding, close to the platform, without proper warning by a man placed at the end of the train.

At the first trial the jury assessed the damages at

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$3,500, and, on this verdict, a judgment was ordered to be entered from which the company appealed to the court in banc and obtained an order for a new trial ([1]). The judgment entered at the second trial was affirmed by the judgment now appealed from.

The principal contentions on the appeal were, that the only negligence relied on in the courts below was the character of a sloping platform at which the accident complained of occurred and, as to which, there was no evidence of faulty or negligent construction; that the case came directly within the authority of Crafter v. The Metropolitan Rway. Co.([2]) ; that the injuries sustained resulted from the fault of the plain tiff in failing to look out for the train when he was running towards the yard tracks and aware that the usual operations of shunting were being carried on; that the case should have been withdrawn from the jury on account of contributory negligence by the plaintiff, and that the judge's charge to the jury was misleading and had not been properly corrected after objections had been taken by counsel and the jury re-called for further directions by the judge.

W. Nesbitt K.C. and Bennett K.C. for the appellants.

J. Travers Lewis K.C. and Smellie for the respondent.

The Chief Justice.—I am of opinion that this appeal should be dismissed with costs.

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Davies J.—With much hesitation I have acceded to the view of the majority of the court dismissing this appeal.

I had formed a strong impression that the charge of the trial judge to the jury was misleading and was not properly corrected after objections had been taken to it by counsel.

I thought that a new trial should be granted on the ground I have stated, but, under the circum stances, will not press my views to the extent of form ally dissenting.

Idington J.—I concur in the opinion stated by Mr. Justice Duff.

Duff J.—The only difficulty I have felt in this appeal concerns the question of contributory negligence, and I have come to the conclusion that the evidence does not so conclusively establish a case of contributory negligence as would have justified the withdrawal of the case from the jury.

The complaint that the learned trial judge misdirected the jury raises a topic which I think the defendants are not entitled to agitate in this court.

It is a forensic principle of some importance that a litigant is bound by the way in which he conducts his case at the trial; he may not play fast and loose. In this case a specific objection to the charge of the trial judge was taken at the trial, and the trial judge was asked to correct his charge on the point in question by giving a specific direction to the jury, and that request was complied with.

In these circumstances it would, I think, be a violation of the principle referred to as well as a, depar-

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ture from the settled course of this court to give effect at this stage to the contention that the direction thus requested to be given, and thus given, was an erroneous direction.

Appeal dismissed with costs.

Solicitors for the appellants: Lougheed, Bennett & Co.

Solicitor for the respondent: J. L. Crawford.